Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

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Sunday, March 29, 2015

Woman Poses as Lawyer for a Decade

Scales of justice 2

Authorities say that a Pennsylvania woman used forged documents to pretend to be a lawyer for ten years and was in line to be named partner when her fraud was discovered. 

Kimberly Kitchen, 45, fooled BMZ law by forging a law license, bar exam results, an email she attended Duquesne University Law School, and a check for a state attorney registration fee.  Kitchen practiced estate planning and handled matters for more than 30 clients. 

Kitchen was charged Thursday with forgery and the unauthorized practice of law.  Her attorney says, “There are things about the charges we don’t agree with so we’re going to be fighting some of the charges.”

See Joe Mandak, Pennsylvania Woman Claimed to Be Lawyer for a Decade, U.S. News & World Report, March 27, 2015.

March 29, 2015 in Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, March 26, 2015

Book on Asset Protection Planning

Asset Protection PlanningJames M. Lestikow and Robert Alan Romanoff's book plus DVD package entitled Asset Protection Planning also counts for 4.00 General and 1.00 Professional Responsibility CLE credit hours. Provided below is a description of the package from the ABA Store:

Protect your clients’ personal and business holdings against future risk with this book and video combination pack!

 Asset protection planning takes many forms. It includes basic advice, inherent in common estate planning strategies, covering such things as gifting, testamentary trusts, revocable trusts, and postmortem planning. It is one of the major motivations in creating limited liability entities for new businesses and to hold family assets. It impacts family lawyers who prepare premarital agreements, as well as real estate lawyers contemplating taking title to acquired property, as well as lawyers counseling clients filing for bankruptcy protection. At the other end of the spectrum are transactions related to removing assets from the easy reach of unknown and potential creditors, which include domestic and foreign asset protection trusts.

This Asset Protection Planning package covers these strategies and more, including sections on:

  • Practical and Ethical Considerations
  • Fraudulent Transfers
  • Bankruptcy Issues Under the Bankruptcy Abuse Prevention and Consumer
  • Protection Act
  • Protecting Family Assets
  • Drafting Considerations for Trusts
  • Planning for Exempt Assets
  • Protecting Business Assets
  • Asset Protection During Estate and Trust Administration
  • Onshore Trusts            

Benefit from highly experienced estate and financial planners as they guide you through how to protect your client’s family and business assets. Asset Protection Planning provides a thorough and highly informative resource for both seasoned planners and those who are still learning the foundations of a solid practice. Includes downloadable forms.

Video available for CLE credit: 4.00 General, 1.00 Professional Responsibility.

March 26, 2015 in Books, Conferences & CLE, Estate Planning - Generally, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 25, 2015

Kidney Catastrophe

 

MalpracticeIn 2013, Christine Clark underwent months of testing so that she could donate her kidney to a longtime friend with end-stage renal disease.  On July 2, 2013, almost an hour after doctors removed Clark’s kidney, they put her friend under anesthesia to receive the transplant.  Her friend had been under anesthesia for two hours when the hospital canceled the surgery.  Clark says doctors stopped the transplant because she had tested positive for hepatitis C. 

Clark and her husband subsequently filed a complaint in the Dauphin County Court of the Common Pleas, claiming the failure to perform the correct test in time “caused catastrophic consequences.”  The complaint further stated, “had appropriate protocols been established and/or followed, the intended recipient would have received plaintiff’s harvested kidney . . . Instead, they purportedly donated the kidney to a hepatitis C-positive patient at a different facility and obtained financial gain and prestige for said transplant.”

Having never received an explanation from the hospital about the failure of the transplant, Clark says the loss of her kidney has left her with various injuries including low blood pressure, nerve damage, scarring and humiliation.  She and her husband are seeking punitive damages from the hospital, Central Pennsylvania Transplant Foundation Inc., and its doctors and nurses for negligence, misrepresentation, and battery. 

See Lana Morelli, Kidney Donor Says Surgery Was a Disaster, Courthouse News Service, March 24, 2015.

March 25, 2015 in Current Events, Estate Planning - Generally, Malpractice, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 24, 2015

Pennsylvania Restricts Lawyers as Financial Advisors

Piggy bank 2Pennsylvania will be the first state to restrict the ability of lawyers to give financial advice.  Since January 30, lawyers who are state or federally licensed financial advisors or insurance agents have been barred from recommending or making investments for clients if they or their family members have financial stakes in the transactions. 

The new rule implemented by the Disciplinary Board of the Pennsylvania Supreme Court reflects the outgrowth of a longstanding prohibition against lawyers accepting referral fees from non-lawyers.  Beyond the ban against profiting from a financial transaction, the board will also prohibit lawyers from giving financial advice unless they have specific registrations with the state or the SEC.  These new prohibitions open up Pennsylvania lawyers to potential sanctions from the board ranging from a meeting with the chief counsel to disbarment. 

See Ted Knutson, Pa. First State To Restrict Lawyers As Financial Advisors, Financial Advisor, Jan. 13, 2015.

March 24, 2015 in Estate Planning - Generally, Non-Probate Assets, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Friday, March 13, 2015

Proposed Fiduciary Rules for Advisors

Law1The new fiduciary rules proposed by the Department of Labor would apply fiduciary duties to retirement plan brokers. If passed these new rules are expected to provide added protection to consumers that often do not read or do not understand the investment disclosures they are provided.

See Ron A. Rhoades, 'Critical Moment' for Fiduciary Advisors, Financial Planning, Feb. 23, 2015.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

March 13, 2015 in New Legislation, Non-Probate Assets, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 10, 2015

Benson's Lawyers Argue "Abuse of Discretion"

Tom Benson FamilyIn the brief filed with a Texas appeals court last week, Tom Benson’s lawyers argued the San Antonio judge’s decision to temporarily remove the Saints and Pelicans owner as manager of his family’s assets and appoint two receivers to take over was an “abuse of discretion.”  The filing further states, “The court’s announcement was made without notice that the trial court was considering such a drastic remedy; without argument, briefing, or the presentation of evidence on that issue; and without reference to the principles of law governing such an action.  The parties have been dealing with the fallout of that sudden announcement ever since.” 

County Probate Judge Tom Rickhoff’s decision to appoint former San Antonio mayor Phil Hardberger and estate lawyer Art Bayern as receivers “constitutes an abuse of discretion for three reasons.”  First, the ruling failed to require evidence of an irreparable harm; second, Renee’s Benson’s claims indicated minor and easily remedied oversights; and finally, the judge’s expansive temporary restraining order prevented Benson from taking any actions related to the trust he has administered for almost 35 years. 

Renee Benson’s legal team will file their reply later this month.

See Katherine Sayre, Saints Owner Tom Benson’s Lawyers: Texas Judge’s Decisions are ‘Abuse of Discretion’, The Times Picayune, March 10, 2015.

March 10, 2015 in Current Affairs, Elder Law, Estate Administration, Estate Planning - Generally, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)

Probate Court May Review Attorney's Fees

Gavel2

In Faulkner v. Woodruff, 2015 Fla. App. LEXIS 3185 (Fla. Dist. Ct. App. 2d Dist. Mar. 6, 2015) the court concluded that if an attorney for a personal representative of an estate charges excessive fees, the probate court has the jurisdiction to review the propriety of such fees, and the burden of proof is on the attorney to establish that such fees are reasonable.  The probate court may review attorney fees even if they are paid from nonprobate assets. 

In this case, a probate estate was opened with under $5,000 in personal property and a homestead residence.  The attorney for the executor charged $39,869 in attorney fees for work performed in the “uncontested proceeding.”  The executor of the estate filed a petition to review the attorney’s compensation as an interested person.  Although the probate court dismissed the petition, the appellate court came to a different conclusion, holding the executor has the same right to have the probate court review compensation paid to the estate’s attorney.

See Jeffrey Skatoff, Probate Court Has Jurisdiction to Review Attorney Fees, Burden of Proof on Attorney, Florida Probate Lawyers, March 8, 2015.

March 10, 2015 in Estate Administration, Estate Planning - Generally, New Cases, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, March 5, 2015

Financial Planning Risks for Professional Athletes

SportsMismanagement of the multi-million dollar salaries of professional athletes is unfortunately common, and a recent example is the case initiated by San Antonio Spurs center Tim Duncan against his financial advisor. The drastically quick wealth jump seen by professional athletes can result in a lack of knowlegde of financial management and full reliance on advisors, some of which are personal contacts that lack adequate knowledge in the area. Proper investing and advice is critical for professional athletes who have relatively short earning windows.

See, Parker Beauchamp, How Professional Athletes  Can Avoid Becoming Another Statistic, Wealth Management, March 2, 2015.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

March 5, 2015 in Estate Planning - Generally, Professional Responsibility, Sports | Permalink | Comments (0) | TrackBack (0)

Trust Attorney Did Not Owe Beneficiaries Fiduciary Duty

TrustIn a recent trust case from Florida and appealed to the United States Court of Appeals for the Eleventh Circuit, life insurance trust beneficiaries brought a breach of fiduciary duty claim against the trustee's attorney.

In Bain v McIntosh, the Eleventh Circuit held that the attorney did not have a fiduciary duty to the beneficiaries, reasoning that under the Florida Evidence Code and Rules of Professional Conduct the trustee and not the beneficiaries was the attorney's client. However, the court dropped a footnote stating that the beneficiaries abandoned the argument that they were intended third-party beneficiaries by not including it in their initial brief.

See Jeffrey Skatoff, Attorney for Trust Owes No Fiduciary Duty to Beneficiaries, Clark Skatoff, March 4, 2015.

March 5, 2015 in New Cases, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 4, 2015

Executors Beware: A Cautionary Tale

Last will and testament

In a tale of caution about being an executor, the cast includes a 73-year-old homemaker named executor of a nonagenarian cousin’s will, an attorney battling brain cancer, seven distant relatives and an IRS bill for $1.2 million in penalties and interest for failure to file an estate tax return and pay taxes on time. 

In an appeal to the U.S. Court of Appeals for the Sixth Circuit, the executor is trying to recover the $1.2 million from a series of complex factual circumstances.  The question is whether her failure to file the return and pay the tax on time was due to reasonable cause or willful neglect.

The details of this story will likely make you think twice about whom you appoint as executor of your will.  While many people hire estate attorneys to do the work and appoint family or friends as executors, it is ultimately the executor who bears the responsibility to make sure everything is done on time. 

“Reliance on counsel cannot constitute reasonable cause for the late filing and payment of taxes.”  Thus, it is ever important as an executor to read your basic duties and understand all of your responsibilities. 

See Ashlea Ebeling, The Executor’s $1.2 Million Mistake, Forbes, March 4, 2015.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

March 4, 2015 in Estate Administration, Estate Planning - Generally, Estate Tax, Professional Responsibility, Wills | Permalink | Comments (0) | TrackBack (0)